Landlord Granted Dispensation From Consulting Tenants About Urgent Sewage Works

OUTCOME: Allowed

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

(RESIDENTIAL PROPERTY)

Case Reference

:

CHI/43UB/LDC/2024/0122

Property

:

[ADDRESS], [POSTCODE]

Applicant: [redacted]

:

[COMPANY]

Respondents

:

[redacted]

[NAME] & [NAME] [COMPANY]

:

Type of Application

:

To dispense with the requirement to consult [NAME] about major works section 20ZA of the Landlord and Tenant Act 1985

Tribunal Member

:

Regional Judge Whitney

Date of Decision

:

30 January 2025

DECISION

This is a formal order of the Tribunal which must be complied with by the parties.

Communications to the Tribunal MUST be made by email to [EMAIL]. All communications must clearly state the Case Number and address of the premises.

Summary of the Decision

1. The Applicant is granted dispensation under Section 20ZA of the Landlord and Tenant Act 1985 from the consultation requirements imposed on the landlord by Section 20 of the 1985 Act in relation to the urgent works to the sewage system. The Tribunal has made no determination on whether the costs of the works are reasonable or payable.

Background

2. The Applicant seeks dispensation under Section 20ZA of the Landlord and Tenant Act 1985 from the consultation requirements imposed on the landlord by Section 20 of the 1985 Act. The application was received on 25 July 2024.

3. The Property is described as a residential block over three floors, including ground and lower ground. It is said to contain nine units, being five apartments and four houses. The internal layout has internal half levels on upper floors and Flat 5 has its own entrance. The application suggests the Property was constructed in 2018 and also contains individual parking bays.

4. The Applicant is the freeholder of the Property and is represented by its managing agent. The Respondents are the [NAME] of the Property.

5. The Applicant explained that on 15 January 2024, it was made aware of a sewage issue near the communal car park and instructed its current repairs and maintenance contractor (JBL Property Maintenance) to investigate. The contractor reported that the waste pump system was malfunctioning and was spilling out sewage. One of the two pumps within that system was already faulty and it assessed that both needed replacing.

6. The works were said to be urgent as the sewage issue was causing a risk of a health hazard and safety to the [NAME]. The Applicant therefore did not carry out a formal consultation but instead obtained two quotations for the works; [NAME] were assessed to have the most competitive price and so were appointed.

7. The works have now been completed at a stated cost of £5,760 plus VAT.

8. The Applicant says it kept the Respondents informed through verbal contacts and says no complaints were received.

9. The Tribunal gave Directions on 5 November 2024 listing the steps to be taken by the parties in preparation for the determination of the dispute, if any.

10. The Directions stated that Tribunal would determine the application on the papers received unless a party objected in writing to the Tribunal within 7 days of the date of receipt of the Directions. No party has objected to the application being determined on the papers.

11. The only issue for the Tribunal is whether or not it is reasonable to dispense with the statutory consultation requirements. This application is not about the proposed costs of the works, and whether they are recoverable from the [NAME] as service charges or the possible application or effect of the Building Safety Act 2022. The [NAME] have the right to make a separate application to the Tribunal under section 27A of the Landlord and Tenant Act 1985 to determine the reasonableness of the costs, and the contribution payable through the service charges.

The Law

12. Section 20 of the Landlord and Tenant Act 1985 (“the Act”) and the related Regulations provide that where [NAME] undertakes qualifying works with a cost of more than £250 per lease, the relevant contribution of each [NAME] (jointly where more than one under any given lease) will be limited to that sum unless the required consultations have been undertaken or the requirement has been dispensed with by the Tribunal. An application may be made retrospectively.

13. The relevant section of the Act reads as follows:

S.20 ZA Consultation requirements:

Where an application is made to a Leasehold Valuation Tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying works or qualifying long-term agreement, the Tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements.

14. The appropriate approach to be taken by the Tribunal in the exercise of its discretion was considered by the Supreme Court in the case of [COMPANY] v [NAME] et al [2013] UKSC 14.

15. The leading judgment of Lord [NAME] explained that a Tribunal should focus on the question of whether [NAME] will be or had been prejudiced in either paying where that was not appropriate or in paying more than appropriate because the failure of [NAME] to comply with the regulations. The requirements were held to give practical effect to those two objectives and were a means to an end, not an end in themselves.

16. The factual burden of demonstrating prejudice falls on [NAME]. [NAME] must identify what would have been said if able to engage in a consultation process. If [NAME] advances a credible case for having been prejudiced, [NAME] must rebut it. The Tribunal should be sympathetic to [NAME](s).

17. Where the extent, quality and cost of the works were in no way affected by [NAME]’s failure to comply, Lord [NAME] said as follows:

I find it hard to see why the dispensation should not be granted (at least in the absence of some very good reason): in such a case the tenants would be in precisely the position that the legislation intended them to be- i.e. as if the requirements had been complied with.

18. The main, indeed normally, the sole question, as described by Lord [NAME], for the Tribunal to determine is therefore whether, or not, [NAME] will be or has been caused relevant prejudice by a failure of the Applicant to undertake the consultation prior to the major works and so whether dispensation in respect of that should be granted.

19. The question is one of the reasonableness of dispensing with the process of consultation provided for in the Act, not one of the reasonableness of the charges of works arising or which have arisen.

20. If dispensation is granted, that may be on terms.

21. There have been subsequent Decisions of the higher Courts and Tribunals of assistance in the application of the Decision in Daejan but none are relied upon or therefore require specific mention in this Decision.

Consideration

22. The Directions attached a reply form for the Respondents to complete to confirm whether they agreed with the application or not and if opposed, to provide a statement setting out why they oppose.

23. The Tribunal has received no reply form from any of the Respondents and the Applicant has confirmed by email on 21 January 2025 that they have received no reply forms.

24. Having considered the application and prior to undertaking this determination, I am satisfied that a determination on the papers remains appropriate, given that the application remains unchallenged.

25. The reason why dispensation from consultation requirements is said to be required is due to the potential health hazard and safety risk to the [NAME]. Given the nature of the works and the fact that it related to the safety and welfare of the property and its occupants, I am satisfied that the qualifying works were of an urgent nature.

26. There has been no objection to the dispensation of the consultation requirements from any of the [NAME].

27. None of the [NAME] have therefore asserted that any prejudice has been caused to them. The Tribunal finds that nothing different would be done or achieved in the event of a full consultation with the [NAME], except for the potential delay and potential problems.

28. The Tribunal finds that the Respondents have not suffered any prejudice by the failure of the Applicant to follow the full consultation process.

29. The Tribunal consequently finds that it is reasonable to dispense with all of the formal consultation requirements in respect of the major works to the building as described in this Decision.

30. This Decision is confined to determination of the issue of dispensation from the consultation requirements in respect of the qualifying works for the replacement of both of the sewage pumps as outlined at paragraph 5. The Tribunal has made no determination on whether the costs are payable or reasonable. If a [NAME] wishes to challenge the payability or reasonableness of those costs, then a separate application under section 27A of the Landlord and Tenant Act 1985 would have to be made.

31. In reaching my decision I have taken account of the fact that no party has objected to the application. The [NAME] have had opportunity to raise any objection and they have not done so.

RIGHTS OF APPEAL

32. A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to the First-tier Tribunal at the Regional office which has been dealing with the case by email at [EMAIL]

33. The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.

34. If the person wishing to appeal does not comply with the 28- day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28- day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.

35. The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.